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Monday, 28 November 2016

Life sentence for the killer of Jo Cox

It was interesting to see from the reports of the trial that Thomas Mair apparently refused to plead at all and therefore was treated as having pleaded not guilty. On, no doubt, being rightly convicted of murdering Jo Cox he was then sentenced by the Judge to a “Whole Life Sentence”(aka "Order").

We have heard this is a mentally disturbed loner with a long history of psychiatric problems. The murder seems to have been at least much a product of “Care in the Community” than of any political issue.

No doubt the chorus from the authorities would have been entirely different if he had been an Islamist!

It is also interesting to see the reaction in terms of this sentence. Here is what the judicial sentencing guidelines say:-

Whole life order

For the most serious cases, an offender may be sentenced to a life sentence with a ‘whole life order.’ This means that their crime was so serious that they will never be released from prison.

On 30 June 2016 there were 59 offenders serving a whole life sentence. These include serial killers Peter Sutcliffe, Ian Brady, Dennis Nilson and Rosemary West.

The key part to consider is the whole life sentence and the type of criminals that get sentenced to whole life sentences, who are predominately serial killers. They are sentenced to whole life sentences because they are a general threat to the community.

An even more startling contrast comes when you consider what has happened with IRA killers. Consider this report:-

John Proctor murder: Life sentence for IRA killing of part time RUC man

Seamus Kearney who was today jailed for life for the murder of reserve RUC constable John Proctor

A convicted terrorist has been jailed for life after being found guilty of the IRA murder of part time RUC man John Proctor 32 years ago.

Belfast Recorder, Judge David McFarland told 54-year-old Seamus Martin Kearney, he was satisfied he was "either the gunman, the driver of the Ford Escort RS200 (getaway car) or was an occupant of the car being present to provide support for the killing".

Kearney, of Gorteade Road, Swatragh, Co Derry, had denied the murder of the 25-year-old reservist and possessing the Armalite AR15 assault rifle used to shoot him dead, minutes after visiting his wife June, and new-born son, John Jr, at the Mid Ulster Hospital on September 14, 1981.

DNA found on a cigarette butt recovered from the scene later matched Kearney's DNA profile and the Belfast Crown Court judge said in "all of the circumstances I am satisfied beyond a reasonable doubt that the defendant had smoked the cigarette and having finished it smoking it, discarded it at, or about the time of the shooting".

After Judge McFarland announced his guilty verdict, Mr Proctor's widow June wept.

Other members of his family, including his sister, comforted one and other.

Although Kearney was told the only sentence for murder was life imprisonment, and while he is yet to hear what tariff is to be fixed on the sentence, under the terms of the Good Friday Agreement, he may only serve two years of the eventual sentence.

This is the second time that Kearney has been convicted of a terrorist gun attack.

In December 1984 Kearney was jailed for the attempted murder of UDR soldiers, whose Land Rover came under fire from the same AR15 rifle used to kill John Proctor.

Also consider this Article by Louise Mensch the former 'Conservative' MP:-

Jo Cox’s Murderer is Convicted – But I Stand By What I Said About His Prejudiced Trial

Jo Cox’s murderer, Thomas Mair, has been convicted in a court of law. We can say that he was a terrorist; and that he murdered this brave wife and mother for political reasons. The legal definition of ‘terrorism’ is violence undertaken to achieve a political end.

But some people and journalists who support Remain have used the result of the trial to tell me that I should disavow tweets I made about Mair and Cox during the Referendum. They have also erroneously said that I recently deleted (presumably because of the verdict) tweets I made about Mair and Cox.

Let’s address the first accusation first. I tweet a lot, and use a tweet deletion tool periodically that wipes tweets from a given period or by a given keyword eg: ‘Labour’ “Corbyn” “Tories”. So no, no tweets about Mair and Cox were deleted other than as part of an auto-delete program.

My arguments about Thomas Mair and his trial still stand today.

How can that be? Mair was convicted after being found to be fit to stand trial; he was evaluated psychologically first. That order – from the judge – came after Mair gave his name as ‘death to traitors, freedom for Britain’. Clearly the judge thought it warranted.

The evaluation did not find Mr. Mair’s mental illness as being so advanced that he could evade criminal responsibility. That is literally all we know about it. There is, however, strong evidence that Mair was mentally ill. He was being treated for it, he asked for help the day before he went to kill Jo Cox; he had in the past commented on mental health, even advocated for it.

In fact, based on an article by Matthew Scott in his barrister blog, I would argue that parts of Thomas Mair’s trial seem, at least on the surface, to be unfair, based on his mental health issues, and others, I would argue, raise the question of a miscarriage of justice – at least in so far as it would seem the accused did not receive a fair trial.

Firstly, as the piece points out, Stephen Kinnock was allowed to read an impact statement about Jo Cox before Mr. Mair was convicted. This seems wrong and prejudicial. The article certainly at the least implies that it ought not to have happened:

Why were the jury read a statement from Stephen Kinnock?

Mr Kinnock’s statement seems to have had nothing to do with proving the guilt of Mr Mair. It was a heartfelt tribute to a friend and political colleague.

I have no idea why it was admitted into evidence. Such letters are often read once someone has been convicted, but it is hard to see the relevance while Mair’s guilt was still not legally established. Perhaps, for some reason, the defence agreed to this unusual course being adopted.

Secondly, there was no psychiatric evidence or medical evidence argued in mitigation.

Let us remember that Thomas Mair was subject to psychiatric evaluation because he said that his name was ‘Death to Traitors, Freedom for Britain.’. In the court, he refused to speak at all except to confirm his name. He would not enter a plea, and the judge had to enter one for him. The defence at that time also told the judge they would not advance a psychiatric defence. From Reuters:

He remained silent when asked if he was guilty or not guilty to the murder, as he did when the other charges were read out to him.

“He appears to be mute therefore I will enter a plea of not guilty,” said Judge Alan Wilkie.

His lawyer told the court at another hearing in September that Mair would not present a defence case based on medical evidence. That could involve arguments such as, for example, that he had diminished responsibility due to a medical condition.

Matthew Scott asks the pertinent question:

Why then did the defence not call any such evidence? Insanity or, more realistically, manslaughter on the grounds of diminished responsibility, provided the only remotely plausible escape route from a life sentence. So why did the jury not hear from any psychiatrist? There are quite a number of explanations: perhaps Mair had refused to co-operate with the preparation of any such report. Perhaps he had co-operated but the psychiatrists had agreed that he was entirely sane and not suffering from any relevant mental health problems.

While all things are possible, I would suggest the second option is unlikely. Co-operation with such a report would indicate a desire to argue mitigation on mental health grounds. If the first report found Mair responsible, there might have been an appeal for another report.

More worryingly, Mr. Scott’s article goes on to assume that mental health will be taken into account in sentencing:

Even though the defence did not run any form of “psychiatric” defence, it is likely that before he is sentenced the judge will want to give some consideration to his mental health.

But it was not. In point of fact, the judge’s short remarks make no reference at all to any mental health diagnoses, below the level required to argue competence to stand trial.

Why then did the accused’s barrister not raise any objections to Mr. Kinnock’s testimony, nor ask for mitigation based on mental health issues? Matthew Scott skillfully lays out how Mair’s barrister Mr. Russell-Flint did what he could for his client within the code of conduct, if his client had admitted the murder to him. But there is surely a further explanation. If Mair was found to have the competence to stand trial, and he was, he could have given his barrister instructions, and ignored his barrister’s advice, and his lawyer would have had to go along with his client’s wishes, as he could not call for his client’s decision-making powers to be removed when he had just been declared to be sane.

There is, however, an absolute gulf between sanity for the purposes of criminal responsibility and mental illness. You can be both sane, and suffer from extreme mental illness. Only at a certain level of mental illness do you lose responsibility.

It was the judge in the trial, then, and not the court-appointed lawyer, who had the job of guarding Mr. Mair’s rights. And he appears not to have done so. Both the trial and the commentary in its aftermath concentrated on the unarguable, unargued virtues of the brave MP, wife and mother, Jo Cox MP. It is one thing for a press to do that, even other politicians. But it is not morally right for judges to do it. Before he was convicted, the trial judge allowed the jury to hear from Stephen Kinnock about Jo Cox’s good character. That is wrong. It is morally indefensible. Thomas Mair was mentally ill but competent and the judge, I believe, played to the gallery by making the trial what it never ought to have been – a comparator of the characters of heroic Jo Cox and racist Thomas Mair.

Before the trial I was tweeting about the hugely prejudicial leaks coming out of the police to the newspapers; and about tweeters online falsely tweeting photographs of a man who was not Thomas Mair who had been involved with racist groups. It would appear that I was correct in my surmise. The man that the left was calling “Thomas Mair” who appeared with Britain First in Dewsbury was not the same person. I was quite correct in what I reported at that time and am proud that the work I did on this matter has been confirmed. Tell Mama UK, the anti-Islamophobic, anti-racist organisation, reported:

Parts of the Left did attempt to provide a ‘gotcha’ moment to the media. But it would fall flat. Nor did it stop a litany of social media posts and blogs from presenting ‘evidence’ of Mair’s overt fascist beliefs. A ‘smoking gun’ had been found, they claimed. Mair was no ‘timid gardener,’ but a neo-Nazi hidden in plain sight. One photo attributed to Mair had depicted a man performing a Nazi salute. His arms covered in far-right tattoos, wearing a Blood & Honour shirt. Yet, the person in question was not Thomas Mair. Photos of Mair’s arrest revealed a man with no tattoos on either arm. Nor did the man share the same mole on his left cheek. Despite such facts, Facebook posts and tweets with this false informed gained thousands of shares.

A second photo claimed to prove Mair ‘links’ to the far-right Britain First party and street defence movement. This evidence was based on a single photo from their activities in Dewsbury in 2015. One source claimed that the black baseball cap was the same worn by Mair on the day of the murder. But again, the poor quality of the photo made verification impossible. The man alleged to be Mair in this photo, however, appears to wear a navy-blue coloured cap. On the day of the murder, CCTV footage of Mair showed him in a whitebaseball cap. Others described him wearing either a black or dark creambaseball cap. Once again, despite the uncertainties of the evidence, this second piece of ‘evidence’ gained hundreds of online shares.

All of this, as reported by me when politically unpopular to do so, was prejudicial to Thomas Mair’s rights. So was the abuse of his rights by the State when Parliament was recalled over the death of Cox. National newspapers again and again described the killing as “murder”. This prejudiced the trial of Mair.

Parliament to be recalled on Monday in mark of respect to murdered MP Jo Cox

The fact that Mair has now been convicted of murder does not change this fact one iota. The fact that the law has now declared that Cox’s killing was murder, because Mair has been convicted, in no way alters the fact that to declare her killing “murder” in advance of any mental health issues being heard at trial prejudiced Thomas Mair’s trial and his rights. So we now have Parliament, the national press, and thousands and thousands of social media users prejudicing the trial of a mentally ill man.

The courts issued no warnings to the press on behalf of Thomas Mair, as they have done in other cases. The judge allowed a friend of Jo Cox to sing her praises to the jury in advance of his conviction. I have little doubt that this was bad law, a poor judge, and a bad trial.

And my belief here has no relation whatsoever to the esteem in which I hold Jo Cox, who did her duty, who was so brave and so British. Because the law and the rights of the accused are easy to argue over when there is a more sympathetic defendant and a less sympathetic victim. When you have a competent, but deeply troubled, deeply mentally ill man who is a racist, and you have a beloved, brave MP who stands up for the weakest in her society, it’s a lot less convenient to be the person saying: the accused has rights and those rights were violated.

But I do say so. And as somebody who has spent the last six months fruitlessly fighting Donald Trump’s ascent to power, and battling Russia and their alt-right Nazi trolls, I have no doubt in my mind that it is the right thing to do. I knew that Thomas Mair was not the person in those photographs. I knew and still know he was mentally ill. That does not preclude either competence or guilt. I do not argue now – and did not argue before – that Thomas Mair was too mentally ill to be competent. But his mental illness should have been a factor for this judge; and his trial was hopelessly prejudiced by the media and social media before it began, and by the judge during its proceedings when he allowed Kinnock’s statement to the jury. I know that Jo Cox spent her life standing up to racism and the Nazi beliefs of Mair and other terrorists like him. From what I read of her, she would have been zealous too for an unprejudiced trial and the rights of the mentally ill to have that taken into consideration.

Thomas Mair’s unfair trial is not OK because his victim was a wonderful brave woman, a wife, mother, friend, and Member of Parliament. Nor is saying so an attack on Jo Cox’s memory, nor is it an apologia for Mair or for terrorism. There is every possibility that a completely fair and unprejudiced trial, without Kinnock’s statement being read, without it being called ‘Murder’ in the headlines in advance, without thousands of fake social media photos of some other Nazi, would have not only convicted Mair but, after due consideration of the mental illness the man did in fact have – have come to the same result and given Mair exactly the same sentence.

That outcome is even probable. And yet none of this changes the fact that Thomas Mair did not receive a fair trial. That can never diminish the memory of his heroic victim. Her character stands apart from Mair’s in every way. But it does diminish our great country, and it does diminish our justice system. And reporters perform a public duty when they point out violations of the rights of the accused, even if those accused are Nazis, and even if they are terrorists. Because a concern for justice is one thing that separates us from racists and terrorists. And that does not put me on the ‘side’ of Thomas Mair. It puts me in the same corner as the values to which Jo Cox MP dedicated her life.

Saturday, 26 November 2016

I
was recently asked to speak at the Redbridge Rotary Meeting. Rotary have a
strict policy that speeches are not to be party political and I was asked to
talk about key dates and developments in English history which caused the
political constitution in England to develop in the unique way that it did and
thereby led to many of the key developments which brought the modern world into
existence.

Here
are the key points that I referred to in my speech:-

Ladies
and Gentlemen of Redbridge Rotary many thanks for inviting me to speak to you
today.

A
few months ago I happened to meet and get talking to your colleague, Tony Betts,
about the uniqueness of English history. He said that he thought you would be
interested. So thank you Tony for my invitation here today to talk about
English history and how our unique constitution developed.

As
G K Chesterton said “What can they of England know who only England know” and so
I do find that sometimes people who haven’t travelled much say that there is no
difference about England and it has no culture.

The
thing is Ladies and Gentlemen that in English schools now, English history is
barely taught and certainly not taught in a way which allows our school children
to understand how our constitution developed as a result of events in our
history.

Let
me tell you what I think is a symptomatic story. My daughter is interested in
history and when she was doing her GCSE’s I happened to ask what she had been
studying. She said history. So I asked what about. She said Hitler. So I
said oh that’s interesting so who was the greatest mass murder in human
history? She immediately said Hitler. So I said no Mao Tso Tung – 95 million.
She looked a bit crestfallen so I said so who is the second greatest mass
murderer in human history? She said Hitler again a bit hesitantly. So I said
no Joe Stalin - 55 million. I then asked who was the third greatest mass
murderer in human history? She was very hesitant by now and asked me was it
Hitler so I said yes.

Although
this story is not about English history it does show both the bias which
our children are subjected which edit out historic truths that are inconvenient
to the Left and also that there is no teaching of any understanding of how
things fit together.

So
what I propose to do is to concentrate on how English history fits together and
focus on the key dates in the development of that unique entity called:- “the
English Nation” and its Nation State: “England”.

To
illustrate how unique England is I would point out that one historian called
England “God’s first borne of the Nation states of the Earth”.

So
here goes Ladies and Gentlemen.

412
Legions depart

End of Roman Britain

The
rise of the Heptarchy – settlement/conquer by Angles, Jutes and
Saxons

664
Synod of Witby – Culmination of the Roman Catholic mission founded by
StAugustine

731
Venerable Bede – Book:- Historica Ecclesiastica Gentis
Anglorum

793
Viking’s first raid

20.11.869
Martyrdom of St Edmund – Patron Saint of English as a
people

878
Alfred the Great burns cakes. Alfred wins a first great victory against the
Vikings at Eddington

His Military reforms

880’s
His publication of English Bible

886
His creation of London as a burgh

890
His promulgation of his law code in English

12.7.927
King Athelstan – English unity – at Eamont

1066
Edward the Confessor (Patron Saint of English Monarchy)

William the Conqueror calls himself: “Basileus”.

1189
“Time Immemorial” “Basileus” (Death of Henry II) Customary law basis of Common
Law (a unique English contribution).

1215
Magna Carta – the King uniquely subjected to the Rule of
Law

Re-promulgated
as manifesto by William Marshall and Henry III

1222
St George’s Day 23rd April adopted (Patron Saint of
England)

1265
First British Parliament in Westminster Abbey Chapter House. We can see the
spot on Westminster Abbey wall where Henry III ran out of
money!

Edward
I uses Parliament to raise more tax for his wars

1333
Battle of Halidon Hill. First of three great victories of Edward III. Berwick
on Tweed finally settled in England.

1461
Towton etc. – Slaughter of much of medieval nobility

1485
Bosworth - Wars of the Roses ends

1517
Martin Luther posts 95 theses on church door in Wittenberg

1535
Reformation - Tudor Monarchy apparently very dominant but parliament is the
mechanism by which even the religion of England is ordered to be changed (and
later back and forth).

1535
Official Bible printed in English

1536
Act of Union with Wales

1603
Scottish King inherits English Crown. James I of England 6th of
Scotland tries to get English Parliament to agree to United Kingdom and
fails

1642
Civil War

1649
Charles beheaded

England declared a Republic and Commonwealth

1689
Glorious Revolution – Bill of Rights

Crown in Parliament is Sovereign. Keystone of legislative constitution as set
out in Miller (Brexit) case by LCJ. NB. Not the sovereignty of the
People!

1707
Union of Parliament - Scotland

1721
Emergence of Prime Ministerial government

England uniquely was the first Industrial Revolution

1801
Union – Ireland – Union Jack complete

1832
Great Reform Act – Parliament begins to increase the rate of
legislation

How to fix regional inequality

Only a re-working of the constitution can bring the UK back together - By Gordon Brown

Today, the United Kingdom appears united in name only.

Already the strains of the European referendum result are showing, as different nations, regions, sectors and companies desperately seek their own opt-outs from a hard Brexit.

But the demand for an a la carte Brexit is only the surface manifestation of deep divisions across the country.

Lying behind the popular revolt on 23rd June are huge structural inequalities that divide north and south and which the current government is failing to address.

Northern unemployment rates—6.8 per cent in the northeast—are almost twice as high as in the south. Last year, the number of workforce jobs in the northeast fell by 40,000 and rose by only 1,000 in the northwest while, in contrast, London and the south east gained 277,000 jobs.

Since 2010, the northeast with four per cent of the population has produced just three per cent of the country’s Gross Value Added and secured only two per cent of the new jobs. The northwest with 11 per cent of the population has produced only nine per cent of the GVA and delivered only seven per cent of the new jobs. And Yorkshire and Humberside with eight per cent of the population has been responsible for 6.5 per cent of the GVA and only six per cent of the new jobs. By contrast, London and the southeast with 26.8 per cent of the population has 37.7 per cent of the GVA and secured 39 per cent of the new jobs. In fact, half of the new jobs created since 2010 went to London, the south east and the east.

Sadly, the post-referendum optimism felt by “Leave” voters in the north will be short-lived. More dependent on trade with Europe than the south, the north will lose jobs faster.

Economically, Britain is becoming two nations—a prosperous south east and a permanently struggling north—with, at the centre, a London economy which is appearing to decouple from the periphery of the country.

The problem: inequality

The revolt of Britain’s regions on 23rd June was driven by discontent, anger and in some cases resentment at growing inequalities.

A study by Professor Philip McCann has found that the UK’s regional inequalities in income are now among the largest in Europe. The average household adjusted disposable income is almost 60 per cent higher in Greater London than in many regions of England as well as in Wales and Northern Ireland. The most recent data, published in December 2015, shows that more than half of the UK population live in regions whose GVA (gross value added) per capita averaged below £22,335. Meanwhile there are areas of London which, with a GVA per head of £135,000, are richer than any comparable part of mainland Europe. By contrast, GVA per head in Tees Valley and Durham is £17,055 and in west Wales and the Valleys it is £15,745.

The latest Eurostat data shows that the Welsh Valleys and Tees Valley have GDP per capita levels, expressed in Purchasing Power Standard (PPS), which are respectively 69 per cent and 74 per cent lower than the EU average, placing them below Lithuania, Slovakia and Slovenia. Overall the north of England, Wales and Northern Ireland have GDP per capita levels that are lower than Mississippi and West Virginia.

London is decoupling from the rest of the country not just because it is a unique capital with a financial services industry fixed on the global economy, but because, as Professor McCann argues, few benefits other than tax revenues flow out of London to the regions. McCann shows there is little economic spill-over from London—in jobs, in the relocation of industries or in technology transfer. In other words, policy actions that enhance London’s economy do little to strengthen the economies of the rest of the UK.

Of course, we should recognise that London itself has thousands of poor families and economic inequality is a problem within the capital. But while 10 per cent of London’s workers are low paid, the figure in the north is around 25 per cent. And the divide is growing. The Northern Powerhouse policy has obscured a cut in regional aid—which in the last six years has been fallen to around £2bn, a third lower than the average during the first decade of this century. As much as three quarters of Government and Research Council R&D spending is in the southern third of the country and only 7 per cent in the north of England. Historic gaps in infrastructure spending are set to widen: transport infrastructure spending per head is set to be £1,900 per annum in London between now and 2020-21 but less than £300 in the northeast.

A London-centric view of the UK no longer works even for the capital—as it struggles with congestion, overheating and a housing crisis, while the regions face depopulation, forced emigration and deprivation.

A new constitution

Britain needs a more balanced economic policy which releases the initiative and dynamism of each region and nation and seeks to bridge the growing divide between core and periphery.

Regional inequalities will only worsen if we continue to centralise decision-making without being sufficiently sensitive to the needs of the regions and nations.

The centralist constitution that evolved during the first Industrial Revolution—which served the UK in the days of the Empire, when London’s political power was matched by the north and midlands’ economic power—does not suit the new world.

Quite simply a Whitehall-dominated constitution can no longer meet the needs and aspirations of our regions and nations. Only a re-working of the UK constitution that starts from the regions and nations will reunite this divided Kingdom.

In Scotland in 1989, at a time of economic concern and political pressure, a constitutional convention that involved civic society as well as the political parties managed to deliver a consensus on the way forward. Now, again, a people’s constitutional convention—as proposed by Labour—offers the best starting point from which to rebuild.

I have suggested that a convention could start by examining the impact of Brexit on the regions and nations of the UK, and questioning whether it makes sense to repatriate powers from Brussels to Westminster when many of these powers would be best administered in Scotland, Wales, Northern Ireland and the English regions. I propose that we consider devolving powers over regional policy, agriculture, fisheries, environmental protection and social funds to the Scottish Parliament, the Welsh and Northern Irish Assemblies, the new City Mayors and local authorities.

We should consider the case for devolving further powers from the UK to Scotland, Wales and Northern Ireland in light of the Brexit vote. For instance, as the UK will no longer be part of the EU Social Chapter—and the Tories threaten to abandon workers’ rights—employment law could come within the ambit of the Scottish Parliament. If Brussels repatriates its powers to Westminster and Whitehall, Britain will become even more centralised.

One the same basis, there is an argument for creating areas of co-decision making between the four nations. This would ensure none could be forced out of the European Convention on Human Rights (ECHR) against its will. We should agree that if England wishes to leave the ECHR, Scotland should have the ability either to veto that decision—or to remain part of it.

And there is no reason why the constitutional convention should not examine the merits of giving the nations and regions the power to make agreements with the EU in respect of devolved matters, and to have a presence in Brussels. Few universities want to lose the benefits of the Erasmus Programme and few research establishments want to lose the benefits of Horizon 2020—and it may be that the nations and regions of the UK that wish to remain part of them could do so.

Devolution of power also means devolution of finance and there is no reason why the resources to deliver these services could not be devolved to the regions and nations. The new financial settlement could potentially devolve £2-3bn of the £4bn spent annually by the European Union in the UK.

But any constitutional convention would not just be about Brexit and the complaints of the north were not simply about it either. There is therefore a strong case for the convention looking more broadly at the status of the regions and nations within the UK. A more federal union may be the best way of maintaining links with Scotland, Wales and Northern Ireland. Certainly, there is a case for the convention considering codifying the division of powers between the centre of the UK and the regions and nations, and replacing the unelected House of Lords with an elected Senate of the Nations and Regions.

The government should be asked by the Labour opposition to sponsor a convention. If it fails to respond—as happened in Scotland in 1989—then Labour should lead and invite the other political parties to come behind a convention with a remit to engage people outside traditional political parties.

The challenge is how to balance the autonomy communities desire and the cooperation we need. Too much integration and regions and nations lose their power to innovate and to speak for local needs. Too little co-operation and we fail to address big economic and social challenges—financial stability, pollution and inequality—that can only be fully addressed by working together. By starting from the needs of the nations and regions—and getting the balance right between local autonomy and nation-wide cooperation—we can begin to build a fairer Britain.

Friday, 18 November 2016

CAMPAIGN FOR AN ENGLISH PARLIAMENT GETS ACADEMIC ACCOLADE

On Thursday evening I had the great satisfaction of seeing Eddie Bone, the Campaign Director for the Campaign for an English Parliament welcomed to the rostrum to speak at the University of Winchester on the subject of English Governance by the former Labour Minister and now Professor, John Denham.

Eddie gave a very good speech. The text of which appears below and which deserves careful study.

Whilst we have not yet achieved our Brexit or Trump’s triumphal moment yet, the English movement’s trajectory is very encouraging for our future.

Whilst to quote Trump “No-one expected it to be easy”, I am hopeful that when the moment of trial comes we shall be ready!

Here is the text of Eddie’s speech:

There is a forgotten –

nay almost forbidden word,

. . . . a word which means more to me than any other. . . .

That word is

“ENGLAND”

Sir Winston Churchill.

Tonight, I stand here unashamedly as an Englishman talking about England and how we should be governed. I will also be talking about how England fits within the UK and ask you ponder the possibilities that are open to us. When we say, we love our country, England… that it means more than anything to us…. We need to establish what our history tells us about ourselves, our sense of belonging, and our sense of fight and if being English now is any different than our forefathers.

We can only hope to get close to understanding where we are now as a nation by looking at characters from our past and by picking out stories and quotes. Those lessons from our history should resonate with our code of values now. It is the personalities of our past that inspire us, at times will give us courage and in times of need give us comfort and reassurance that we will overcome adversity.

By looking back, we can walk ahead with confidence and be there for England when needed, which is now!!!

But how bad is it? Am I exaggerating, does England need us to stand up and be counted. Let me explain how bad the current situation is….

Since England has no constitutional or political existence of itself it could be argued that England is the last British colony.

Indeed, the Encyclopaedia Britannica describes England thus:

‘Outside the British Isles, England is often erroneously considered synonymous with the island of Great Britain (England, Scotland, and Wales) and even with the entire United Kingdom. Despite the political, economic, and cultural legacy that has secured the perpetuation of its name, England no longer officially exists as a governmental or political unit—unlike Scotland, Wales, and Northern Ireland, which all have varying degrees of self-government in domestic affairs.

In many ways England, has seemingly been absorbed within the larger mass of Great Britain since the Act of Union of 1707.’ (Encyclopaedia Britannica, 2004)

Please just contemplate how serious that is – England no longer officially exists!

However, that situation is made worse because there is grit in the wound because we also need to remember and be aware, that alongside England’s political non-existence, Scotland, Wales and Northern Ireland have dedicated governments focusing on their national economic growth strategies for their respective nations. They have a national strategy, a national vision and a government structure equipped to turn that vision into a reality.

England does not have a national government, nor does it have a vision or main party political manifestos for the people of England.

Devolution has continued to leave England wanting in terms of a national vision or strategy and that needs to change – and it needs to change quickly if you believe in saving the Union. If not, then independence for England versus England disappearing is on the table. – what is your choice???

This is because a void in England’s democracy exists and the lack of her governance has allowed instability and dissatisfaction amongst the English to grow. Far too much attention has been given to the SNP and their lust for independence, whilst England and the English annoyance has been simmering quietly on the side.

You only need to look at the Political parties and Labour to see that they are running around as headless chickens, fretting over losing Scotland and Wales because they cannot face loving England. Political fools come to mind because it will be only through English engagement that they will return to power.

However now that one of UKIP’s potential leaders has declared he wants an English parliament then Labour’s rejection of England and its misplaced love of regionalisation of the English nation, in other terms the break of England, will see UKIP usurp them. I feel sorry for Labour having to put up with Gordon Brown’s celebration of the Scottish and Welsh nations but the utter rejection of England’s right for national determination. His words could easily be construed as anti- English racism.

So, it will be interesting to see if this new UKIP’s vision to save the UK means an English administration and an English First Minister.

Instead of tackling a usurper, Labour and the Conservatives would rather pretend that Devolution at a local level is developing in England, but that is not true because it is confused and dysfunctional Devolution and it is not giving a true voice to people across all of England.

City versus rural, City versus town and village, industrial areas versus agricultural areas. How much better it would be to have rational, coherent and structured de-centralisation of power linked at the conception of an English parliament towards local communities.

It was right when the last government, the coalition came to power, that they dismantled the hugely unpopular regional governments and regional QUANGOS but they failed to address the problem as they didn’t replace it with anything substantial. That should have been an English Parliament, accountable to the people of England. A national federal system should have been created then. The British government let the English down and by doing that they let the UK down because they broke the principles of the 1707 Act of Union and treated citizens across the UK differently.

Instead after the Scottish referendum the Conservative Government introduced English Votes for English Laws which upset the Scots and English at the same time. English Votes for English Laws will fail to address the English Question for the following reasons: It is a procedural device, without the force of legislation, which can be reversed at any time. The votes of English MPs can still be overturned as seen when English voting for extended Sunday trading was overturned by the votes of Scottish MPs in the Westminster Parliament. It does not restrict the ability of a government at Westminster to appoint Ministers for English affairs from other countries of the UK English laws are still proposed by a British Government and revised and scrutinized by a House of Lords, containing members from across the UK, whereas the laws passed by the devolved administrations are not subject to scrutiny by the Upper House. There is no administration devoted to English affairs and membership of select committees for English matters include members of the SNP, who can influence decisions on policy for England It does not address the lack of representation of England per se either within the UK or internationally as in the EU or the British/Irish council.

Also, we, in this room and family across our country cannot ignore the financial reality that has occurred over the decades, the British government Red or blue has treated England’s taxpayer as a cash cow.

They haven’t listened to the concerns of English men and women; all they have wanted is their money. Yes, I am talking about the Barnett formula. The British Elite should feel ashamed of themselves for not abolishing the Barnett formula but unfortunately they do not.

In fact, they have pledged to keep favouring the Scots in naive belief that the SNP will be bought off. I talk from personal experience sitting in Edinburgh with SNP Special advisers they were clear they would take whatever they could financially from the British government. That means the English taxpayer will be expected to cough up even more.

The House of Lords report from 2009 cannot be ignored. The English taxpayer finances the Union. The amount of surplus money that goes to Scotland every year is £10 Billion. Heathrow expansion under Barnett consequential give the SNP at a minimum £500 Million of English taxes. For every 10 billion spent in England on Capital projects a further billion must be given to Scotland.

England has had to guarantee the Scottish Banks and compensate county councils for their adventures investing with Icelandic Banks – the list is endless.

England is now reeling under severe financial pressures that the Barnett formula has created. Closures of A&E departments and council services across England is wide spread.

We know what will work and what has not, irrational, incoherent and messy regionalisation of England is not the answer

Without a coherent English Government, issues such as the effective development of key strategies for England cannot be properly developed.

It is clear for all to see.

The needs of England differ significantly from the needs of Scotland and Wales. Not only in terms of England’s size, but the economic issues that England needs to address are quite different. Therefore, a dedicated English (rather than British wide) Governmental structure is needed to develop policy for areas, ranging from health to housing.

YET for far too long objections to an English Parliament have just been accepted without question.

We have heard many saying that the British Parliament is already dominated by British MPs from England and they can represent the interests of England within the British Parliament, it is essentially an English parliament because English constituencies make up over 80% of MPs, so the influence of Northern Irish, Scottish and Welsh MPs is marginal.

But that is to ignore the obvious. Just look at the influence of Scottish MPs – they are anything but marginal. Unaccountable SNP and Plaid Cymru MPs have overturned, or worse helped enforce policy on England. A mosquito can kill a man and the SNP without a healthy England is killing the UK.

The British Parliament continues to be the Parliament of the United Kingdom and it contains MPs from throughout the UK and pursues the internal and external interests of the whole UK.

It is under no obligation to pursue specific interests relating to the whole of England and there is no body through which those interests can be voiced. The House of Commons splits along party lines, not along national lines.

Moreover, a Union parliament should not encourage ‘English MPs’ – who are British MPs who happen to be elected in England – to be nationalistic and act in England’s interest.

The British Government should put the interests of the UK above the interests of any of the nations. Neither the Union parliament, nor the British Government, can or should be encouraged to ‘speak for England’.

Only a parliament and government elected by, and accountable solely to, the English people can speak for England. Just think, ‘possibly proportional representation’ could be introduced in a new parliament if that was the will of the English people.

Then we have the old classic objection that suggests an English Parliament would be almost as big as the British Parliament and England would dominate a federal Union

That demonstrates a fundamental and unnecessary assumption that the British Parliament would need to be of the same size as it is now.

That assumption ignores or denies that the work of the British Parliament would be very substantially reduced and thus a much smaller Parliament would can represent the constituent parts of the Union.

We already have the situation where many British MPs from areas outside England, cannot initiate, debate or vote on domestic matters that affect them and their constituents, yet they are being paid the same salary as British MPs from English constituencies. Indeed, the Scots, themselves, are asking why they, as British tax payers, are paying for British Government MPs who have no responsibility in the domestic matters that most concern them as voters.

Then I use the word ‘dominate’, because that very quickly rolls off the tongues of Scottish, Welsh politicians and British politicians when an English parliament is suggested – and I agree. ‘no-one wants to be dominated’, but England representing 55 million will dominate under any system, it is the largest nation of the UK.

BUT there is less chance of non-English concerns being rolled out across the UK under a federal system because domestic issues would be separated. Federalism allows the smaller nations of the UK equal ownership of British institutions of governance. Moreover, a federal or confederal system where there is such disparity in size of the members has never been shown not to work. Again, the opposite is true, just look at the USA and Australia. AND if the SNP doesn’t like being dominated then why are they involved as unaccountable MPs in the British Parliament as it concerns itself with predominately English domestic matters.

Then cost is used to block it. It could potentially mean creating another Parliament building with a whole new set of politicians. This would impose an added cost on the taxpayer.

It would create a new layer of politicians but not necessarily a new parliament building. Savings could be made by completely abolishing regionalism and restoring and enhancing governance to ‘little regions’ that already exist called counties. It would means reducing the number of British MPs, and possibly abolishing the House of Lords in favour of a federal parliament. That is worth thinking about, maybe the time has come to wave goodbye to these unelected individuals who appear at times to want to block the will of the people.

Moreover, these costs were clearly not a reason considered very important when granting devolution to the rest of the UK. Why then should the argument that we must not have more MPs be used selectively against English aspirations? Of course, it hardly needs to be said that the cost of setting up an English parliament and government is, on a per capita basis, far less than the cost of setting up the equivalents in Scotland, Wales and Northern Ireland.

Others say that there is no demand.

Clearly, until a proper referendum, based on those of Scotland and Wales, takes place that assertion cannot be demonstrated. However, a significant number of polls of every description since 2001 indicate a majority of the people of England might vote for an English Parliament if asked the same referendum question as was offered to Scotland and Wales.

And then we finally go to party politics and you hear the concerns that an English Parliament would be permanently dominated by the Conservative Party.

That is not even worth answering as it so obviously not true….

This denial of English democratic needs means that the lack of forward planning is impacting on the English quality of life, our lives – prevention of overcrowding and preservation of green spaces etc. These issues need to be carefully considered. Or are you happy for your forests to be sold off, your village greens to be used or your beaches to become privatised.

Let’s take industrial strategy as an example – all I ask is that you think about this.

What kind of industries does England need to develop if we are to provide the kind of wealth creation necessary to finance an ever-growing population especially with the elderly living longer?

Rebalancing the economy away from financial services into manufacturing and hi- tech industries needs policies and incentives. To do that needs the younger generation to be involved across England.

Yet if you look at the education in England – you see English students dealing with a disproportionate cost for their university education when compared to Scotland and Wales.

Full Tuition fees are only applicable to English based students. What a slap in the face for the tax burdened English. This could not be a clearer example, the equal treatment of all people within the Union which is fundamental core value is happening. It has created unbearable financial and political strains which are in danger of breaking the union unless fair and equitable solutions to the financing of education can be properly developed.

If not, then English independence might be the only way forward. Why, who thinks it is fair that English taxpayers unfairly subsidise the education of Welsh and Scottish students whilst having to pay large sums for their own children?

English independence would give England full fiscal autonomy and the Barnett formula and Barnett consequential would be abolished end. That is 49 billion a year saving.

But how many times have you heard when an Englishman/woman complains about the unfairness – that he is a poorly educated, part of the left behind generation, that he is a fascist/racist, a fool and a duped far right. Nonsense.

That kind of anti-English sentiment weakens the bonds of the Union and breeds discontent amongst English taxpayers who are being exploited for their taxes. Be assured that is just a way of shutting the wider population in England up by an out of touch British elite. Look above those insults because it is only done so they can continue to empty your pockets of your hard-earned taxes.

For England to have good policies developed to meet her needs, she also requires a political party to address the people of England, in the same way the political parties deal with the specific and much smaller needs of those of the Welsh and Scottish.

But England also requires the political will of her people and strong leaders that are ready to engage with the 55 million people living in England,

The question for every political party is “who is standing up for England”?

More importantly for Unionists – what is the Union without England?

But take heart – England has had strong leaders in our past.

So, let me take you through a brief look at some events from English history. As mentioned at the start our past, should give us all confidence. These individuals mentioned knew that what England meant to them and they were not afraid to say how they felt, even if it cost them their lives. I have picked them for reasons.

Let’s start in AD 61 Boadicea, Warrior Queen

Before battle somewhere in the Midlands probably just north of Coventry in front of her troops

“I am fighting for my lost freedom, my bruised body and my outraged daughters. Win this battle or perish that is what I, a woman plan to do, let the men live in slavery, if they want to”.

Yes. Boadicea battled for her honour, but she also battled for

her people’s rights and liberty….

Let’s move forward to a character called Byrthnoth in 991

Because standing above the mud flats of Maldon in Essex before and in defiance of the Vikings he let us all know how he felt about protecting England. He said: –

“Listen Messenger, take back my reply

…That a noble earl and his troops stand here

Guardians of the people and of the country, the home of Aethelred, my prince –who will defend this land to the last ditch”.

He showed his entrenched love for England and her people.

And what about the events surrounding Simon De Montfort in 1265. Many of us will know this story but what is of importance is that in the summer of 1258

Those wise men gathered struck a new deal for England with a statement: –

‘Our kingdom shall be ordered, rectified and reformed in keeping with what they think best.

So, we know that a new deal can be done because it has been done…. if the Will is there.

The importance of that event cannot be under estimated and it was English not British…

Then you see an individual named John Ball who in 1381 on Blackheath Common which overlooks London gave a fiery speech as he cried: –

‘that all are equal, that servitude of man to man was introduced by the wicked.

I love those words; they were English words and you see passion and resolve.

Involved in the Peasant Revolt were characters called Wat Tyler, a Kent boy and an individual called Jack Straw.

They were leaders of that rebellion and it did not start in poor and down trodden areas in England, but in rich counties. In fact, it would better to call the Peasants Revolt, the Taxpayers Revolt because then as now the tax burden was too great for the ordinary man and woman… and in a town in Essex at the end of May 1381 rebellion was sparked and at Smithfield Meadow these words were spoken by Wat Tyler: –

Again, I love these comments

‘There should equality among all people …. All men should be free.’

You see that as a country we are prepared to be counted, prepared to stand up for the needs of our fellow man.

Who hasn’t heard of Henry V but on Thursday the 24th October 1415 with a strong belief in God he stood with his troops and said:–

if my cause is just, i shall prevail, whatever the size of my following.

I put this in to show why we feel that we can win against the odds

Then to Tilbury we go with Queen Elizabeth and her rousing words

I know I have the body of a weak and feeble woman but i have the heart and stomach of a king and a king of England too.

It is no coincidence that England led the way in giving women the right to vote when you have the stories of Boadicea and Queen Elizabeth.

Then let’s move to 1620 and the Mayflower and which must be the beginning of the first written constitution 1629. You hear the commons sound defiant when Sir John Elliot

proclaimed and condemned taxation without parliamentary assent

You see the need for fair treatment has been with us for a long time

1819 Henry Hunt in St Peters Field, Manchester bellowed out the need for parliamentary reform and the right of all men to vote by secret ballot. Although great unrest occurred by 1830 Lord Grey told the House: –

‘The principle of reform is to prevent the necessity for revolution, reform is to preserve not to overthrow.’

If only our government would heed those words

Then we have the Tolpuddle Martyr’s story which is about ordinary working people combined to defend their rights. As the sun rose on 24th February 1834, George Loveless set off to work, arrested and deport/convicted of swearing a secret oath as members of the Friendly Society of Agricultural Labourers.

When sentenced to seven years’ penal transportation, George Loveless wrote on a scrap of paper lines from the Union hymn The Gathering of the Unions:

In England, they became popular heroes and 800,000 signatures were collected for their release.

God is our guide! from field, from wave, From plough, from anvil, and from loom;We come, our country’s rights to save,And speak a tyrant faction’s doom:We raise the watch-word liberty;We will, we will, we will be free!

Yet now we see the Cross of St George being banned for the Tolpuddle Festival and Trade Union congresses for Scotland, Wales and Ireland but not for England.

If English Independence is to be avoided, it can easily be done within the bounds of the Union by completing the Federalisation of the United Kingdom which means providing to England the same democratic rights as have been given to the rest.

By answering once and for all the English Question and with only English elected politicians voting on English only matters.

That principle is not heresy. That principle is not an outrageous suggestion. That principle is the basis on which the Union’s democracy is based and it is up to a political party who recognises that restoring democracy to England is the only way the Union will survive into the long term. Samuel Johnson was right “He that wishes to see his country robbed of its rights cannot be a patriot”. Do right by the people of England and they will not forget it.

In conclusion, I will quote another Churchill, a poet called Charles Churchill and he lived between 1731 and 1764. He stated: –

“Be England what she will. With all her faults, she is my country still”.

Those words for me are true and stirring and I hope they are for you as well. All we ask for is an English parliament so that we can be governed fairly. If that cannot be given, then English Independence is the only way forward.

Monday, 14 November 2016

In the light of all the polls and comments in the newspapers I do not think anyone had great confidence in advance of Trump’s victory. I gather from some of the coverage on the night that even Donald Trump himself was talking about the election campaign as having been a tremendous waste of time and money as he didn’t think he had won it.

Nevertheless on the night we really did have another Brexit night with, on ITV, Tom Bradby looking quietly pleased and confident at the beginning along with nearly all ITV’s contributors, the majority of whom were Clinton supporters. But gradually over the course of the night the partying on the Clinton side turned to tears and the reaction of Clinton supporting commentators and journalists turned to despair.

That night I had made the mistake of sitting down to start watching the TV coverage! Then, of course, found it addictive to watch the slow drip drip of good news for Trump, made more dramatic by the moments when Hilary went into the lead and the developing despair of the British and American Establishment commentators especially on the BBC.

It almost made it worth it to pay the BBC’s licence fee!

We now have quite a potentially radical situation in the United States where both Houses of Congress and the Presidency are all Republican badged office holders. If they can behave cooperatively in the way that we would expect of a political party they can make a huge difference to American politics. The third branch of the constitutional “Separation of Powers” is the judiciary. If it can also be transformed as Democrat nominated supreme Court Justices come up for replacement, the Republicans will be able to replace them with Republican nominees and potentially change the constitutional legal basis of the United States.

From the English perspective I think Trump offers more hope of a foreign policy based on “real politique” and old fashioned national interest as against neo-colonialist NeoCon/Liberal interventionist agenda, which has brought catastrophe to so much of the Middle East and undermined the world-wide power and standing of the West. In short there is much to hope for. Also over the course of the next 18 months we have several other very exciting elections to complete the transformation of Western politics!

Exciting times for us all!

Having had to put up with all the nonsense and downright lies from Remoaners over the last few weeks it was a particular low point to hear the BBC Radio 4 item on Woman’s Hour as I was driving on Saturday. On this item we had the classic BBC idea of “balance” with a Californian Black feminist woman Professor of something like Transgender Studies, a Harvard feminist Human Rights Law Professor, a Professor of International” Relations from Sussex University and a Guardian Journalist!

The BBC presenter kept me highly entertained with her increasingly desperate attempts to find a silver lining in the US election outcomes. One of the few of which was apparently the election of a first openly lesbian Governor of the State of Oregan! Even the idea of some women being appointed by Donald Trump in his cabinet failed to sate the BBC’s panels’ despair and fury!

Thursday, 10 November 2016

BREXIT - BEFUDDLED AND BE-JUDGED!

The High Court of Justice of England and Wales has made a preliminary and sensational ruling on how Brexit must be approached. The case, in addition to being politically significant, is of course legally and constitutionally significant as the High Court did pull out all the stops knowing that that was the case, with no less than three of the most senior judges in the England and Wales jurisdiction sitting on the case; the Lord Chief Justice, the Master of the Rolls, and Lord Justice Sales. The case itself is :- The Queen on the application of (1) Gina Miller & (2) Deir Tozetti Dos Santos – and – The Secretary of State for Exiting the EU. It can be found on the court website here:- https://www.judiciary.gov.uk/wp-content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

The case is worth reading if you are at all interested in the law of Constitution.

There is however a potted summary here for those less interested in legal details >>>

1. The issue before the court is whether, as a matter of UK constitutional law, the Government is entitled to give notice of a decision to leave the European Union under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament. This is a pure question of law. The court is not concerned with and does not express any view about the merits of leaving the European Union: that is a political issue.

2. It is accepted by all sides that this legal question is properly before the court and justiciable: under the UK constitution, it is one for the court to decide [5]. It turns on the extent of the Crown’s powers under its prerogative [explained at 24-29]. The Government accepts that neither the European Union Referendum Act 2015 nor any other Act of Parliament confers on it statutory authority (as distinct from the Crown’s prerogative power) to give notice under Article 50 [67-72, 76 and 105-108].

3. On 1 January 1973 the United Kingdom joined what were then the European Communities, including the European Economic Community. Parliament passed the European Communities Act 1973 (1972 Act) to allow that to happen since it was a condition of membership that Community law should be given effect in the domestic law of the United Kingdom and primary legislation was required to achieve this [1 and 36-54]. The European Communities have now become the European Union.

4. Pursuant to the European Union Referendum Act 2015 a referendum was held on 23 June 2016 on the question whether the United Kingdom should leave or remain in the European Union. The answer given was that the UK should leave [2].

5. The process for withdrawal is governed by Article 50 of the Treaty on European Union, which states that once a Member State gives notice to withdraw there is a two-year period in which to negotiate a withdrawal agreement. If no agreement is reached in this time then, subject only to agreement to an extension of time with the European Council acting unanimously, the EU Treaties shall cease to apply to that State. The Government accepts that a notice under Article 50 cannot be withdrawn once it has been given. It also accepts that Article 50 does not allow a conditional notice to be given: a notice cannot be qualified by stating that Parliament is required to approve any withdrawal agreement made in the course of Article 50 negotiations [9-17].

6. Therefore, once notice is given under Article 50, some rights under EU law as incorporated into domestic law by the 1972 Act would inevitably be lost once the Article 50 withdrawal process is completed [57-66].

The Constitutional principles

7. The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty of Parliament it has been established for hundreds of years that the Crown – i.e. the Government of the day – cannot by exercise of prerogative powers override legislation enacted by Parliament. This principle is of critical importance and sets the context for the general rule on which the Government seeks to rely – that normally the conduct of international relations and the making and unmaking of treaties are taken to be matters falling within the scope of the Crown’s prerogative powers. That general rule exists precisely because the exercise of such prerogative powers has not effect on domestic law, including as laid down by Parliament in legislation [18-36].

8. In the present case, however, the Government accepts, and indeed positively contends, that if notice is given under Article 50 it will inevitably have the effect of changing domestic law. Those elements of EU law which Parliament has made part of domestic law by enactment of the 1972 Act will in due course cease to have effect [76-80].

9. The central contention of the Government in the present case is that Parliament must be taken to have intended when it enacted the 1972 Act that the Crown would retain its prerogative power to effect a withdrawal from the Community Treaties (now the EU Treaties), and thereby intended that the Crown should have the power to choose whether EU law should continue to have effect in the domestic law of the UK or not [76-81].

Conclusion

10. The Court does not accept the argument put forward by the Government. There is nothing in the text of the 1972 Act to support it. In the judgment of the Court the argument is contrary both to the language used by Parliament in the 1972 Act and to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers [82-94, 97-104]. The Court expressly accepts the principal argument of the claimants [95-96].

11. For the reasons set out in the judgment, we decide that the Government does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union.

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document.”

Following the release of this Judgment there has been an attack on the political and demographic origins of the three Judges, all three of whom are the product of Labour’s Lord Derry Irvine “Reforms” to the selection and promotion of the judiciary. Lord Irvine expressly said these had been engineered to “ensure that no-one with reactionary views could be appointed or promoted within the judiciary”. This expressed objective has clearly been achieved with these three judges. The

In the original version of the article, the Daily Mail also reported the Master of the Rolls, Sir Terence Etherton as being the first “openly gay” senior Judge and also as having married his boyfriend in “a traditional Jewish marriage ceremony”.

Lord Justice Sales was exposed as being one of Lord Irvine’s personal protégées.

So it appears that we can be reasonably confident of the personal views and political prejudices of all three judges!

The most extraordinary aspect of this fiasco is that any reasonably competent country solicitor would have advised the Government that where a challenge was being made to legal rights to take action (in this case the Government giving notice under Article 50 of the Lisbon Treaty) the obvious thing to do is to get on with it and give the Notice.

This of course would have made it pointless continuing with the court case. The Notice would already have been accepted by the European Union and the process of leaving the EU would therefore be underway regardless of what any court had to say. In such cases the courts are very unwilling to give rulings on what are described as “moot points”. It follows that the fiasco is a product of delay and incompetence within the May Government.

Turning back to the Judgment, it is a Judgment that is more dubious on previous legal authority than it sounds as it is phrased in what has been described as “muscular” language. I would also respectfully suggest it seems to be over certain of its legal position. This is however partly a result of the incompetence of the Attorney General in agreeing that the case was “justiciable”.

The following short comment on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) was published on the Judicial Power Project’s website and is reproduced here with permission. The piece is part of a collection of short commentaries published by the Judicial Power Project; the full collection can be accessed here. I will be publishing a more detailed piece on Miller in due course.

Some of today’s press coverage of the judgment in Miller, accusing judges of acting undemocratically, is deplorable. It is entirely right and proper that the Court should determine the legal extent of executive authority. That is an axiomatic judicial function in a democracy founded on the rule of law. But what of the content of the decision?

The judgment is striking in its muscularity. The Court considered the Government case to be so weak that it judged it untenable before even considering the claimant’s arguments in detail. The Government’s case, said the Court, was ‘flawed’ at a ‘basic level’. Reading the judgment, one might be forgiven for thinking that the Government had advanced a heterodox argument of outlandish proportions. In fact, it was simply asserting that it could use a prerogative power to begin negotiations on the international plane. None of this is to deny the subtlety of the issues to which that contention gives rise concerning the relationship between EU and domestic law, and the role played by the European Communities Act 1972 in mediating that relationship. But as John Finnis has shown, the Government’s position is far from unarguable.

Once the Divisional Court had accepted — contrary to Finnis’s view — that EU law rights are to be considered domestic statutory rights enacted by Parliament, its focus inevitably shifted to the question whether the ECA was to be read as having displaced the Government’s ability to use the prerogative to begin the Article 50 process. In concluding that the ECA had indeed produced such an effect, the Court engaged in a highly creative process of statutory interpretation that involved relying upon the ECA’s status as a ‘constitutional statute’; treating the Act’s ‘constitutional status’ as evidence of Parliament’s intention — a view that is in tension with Laws LJ’s analysis in Thoburn; invoking certain ‘background constitutional principles’ that are relevant to statutory interpretation; and asserting that those principles are particularly relevant to the construction of constitutional statutes.

My point, in this short comment, is not to assess the correctness of the court’s conclusion on this matter. Rather, it is to observe that that conclusion — and the reasoning on which it is based — is highly contestable. Perhaps, therefore, the most surprising aspect of Miller is that the confident certainty of the terms in which the judgment is framed obscures almost entirely the complexity and contestability of the questions to which it gives rise, concerning the selection, content and interaction of the constitutional principles that form the prism through which the ECA falls to be examined.”

The core of the Judgment is that the central institution within the Constitution is the Crown in Parliament. Here is a section of the Judgment well worth quoting and bearing in mind.

“ The principles of constitutional law: the sovereignty of Parliament and the prerogative powers of the Crown

The United Kingdom constitution

18. The United Kingdom does not have a constitution to be found entirely in a written document. This does not mean there is an absence of a constitution or constitutional law. On the contrary, the United Kingdom has its own form of constitutional law, as recognised in each of the jurisdictions of the four constituent nations. Some of it is written, in the form of statutes which have particular constitutional importance (as we explain at paragraphs 43-44). Some of it is reflected in fundamental rules of law recognised by both Parliament and the courts. There are established and well-recognised legal rules which govern the exercise of public power and which distribute decision-making authority between different entities in the state and define the extent of their respective powers. The United Kingdom is a constitutional democracy framed by legal rules and subject to the rule of law. The courts have a constitutional duty fundamental to the rule of law in a democratic state to enforce rules of constitutional law in the same way as the courts enforce other laws.

19. In these proceedings, this court is called upon to apply the constitutional law of the United Kingdom to determine whether the Crown has prerogative powers to give notice under Article 50 to trigger the process for withdrawal from the European Union. The law we were taken to was primarily the law of England and Wales, with some reference to the position in the other jurisdictions in the United Kingdom, Scotland and Northern Ireland. Although this court only has jurisdiction to apply the law of England and Wales, we note that no-one in these proceedings has suggested that such parts of constitutional law in Scotland and Northern Ireland in relation to the interaction between statute and the Crown’s prerogative powers as are relevant to determine the outcome in this case are any different from the law of England and Wales on that topic. Accordingly, for ease of reference and in view of the general constitutional importance of this case we will refer to UK constitutional law.

The sovereignty of the United Kingdom Parliament

20. It is common ground that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme (we will use the familiar shorthand and refer simply to Parliament). Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen. The ECA 1972, which confers precedence on EU law, is the sole example of this.

21. But even then Parliament remains sovereign and supreme, and has continuing power to remove the authority given to other law by earlier primary legislation. Put shortly, Parliament has power to repeal the ECA 1972 if it wishes.

22. In what is still the leading account, An Introduction to the Law of the Constitution by the constitutional jurist Professor A.V. Dicey, he explains that the principle of Parliamentary sovereignty means that Parliament has:

“the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law … as having a right to override or set aside the legislation of Parliament.”

(p. 38 of the 8th edition, 1915, the last edition by Dicey himself; and see chapter 1 generally).

Amongst other things, this has the corollary that it cannot be said that a law is invalid as being opposed to the opinion of the electorate, since as a matter of law:

“The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors.” (ibid. pp. 57 and 72).

23. The principle of Parliamentary sovereignty has been recognised many times in leading cases of the highest authority. Since the principle is common ground in these proceedings it is only necessary to cite the speech of Lord Bingham of Cornhill in R (Jackson) v Attorney General[2005] UKHL 56; [2006] 1 AC 262 at para. [9]:

“The bedrock of the British constitution is … the supremacy of the Crown in Parliament …”.

The Crown’s prerogative powers

24. The extent of the powers of the Crown under its prerogative (often called the royal prerogative) are delineated by UK constitutional law. These prerogative powers constitute the residue of legal authority left in the hands of the Crown. As Lord Reid said in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, at 101:

“The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute.”

25. An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers. But the constitutional limits on the prerogative powers of the Crown are more extensive than this. The Crown has only those prerogative powers recognised by the common law and their exercise only produces legal effects within boundaries so recognised. Outside those boundaries the Crown has no power to alter the law of the land, whether it be common law or contained in legislation.

26. This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom. It has its roots well before the war between the Crown and Parliament in the seventeenth century but was decisively confirmed in the settlement arrived at with the Glorious Revolution in 1688 and has been recognised ever since.

27. Sir Edward Coke reports the considered view of himself and the senior judges of the time in The Case of Proclamations (1610) 12 Co. Rep. 74, that:

“the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm”

and that:

“the King hath no prerogative, but that which the law of the land allows him.”

28. The position was confirmed in the first two parts of section 1 of the Bill of Rights 1688:

“Suspending power – That the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall.

Late dispensing power – That the pretended power of dispensing with laws or the execution of laws by regall authoritie as it hath beene assumed and exercised of late is illegall.”

29. The legal position was summarised by the Privy Council in The Zamora [1916] 2 AC 77, at 90:

“The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution. It is true that, under a number of modern statutes, various branches of the Executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogative involves any power to prescribe or alter the law administered in Courts of Common Law or Equity…”

These principles are not only well settled but are also common ground. It is therefore not necessary to explain them further.”

This approach is, to be fair, consistent with the way our Constitution Law has developed. I have previously commented that democracy is very much a bolt-on to the oligarchic principles of the British Constitution. No clearer statement of that could really be sought from any legal Judgment.

In a genuine democracy it is the “People” and the “Nation” which is sovereign, not some constitutional construct like the “Crown in Parliament”. In a genuine democracy the “Crown in Parliament” would be seen to be the delegates of the People not their masters. The People within a democracy are “citizens” not “subjects”. The United States Constitution has a greater aspiration towards being democratic than our constitution which is why there is reference to “we the People…” and court cases are brought in the name of “the People” against the accused rather than as here “the Crown” against the accused.

So what we have in this case is a strongly worded logical Judgment based on the traditional unpinning of the Constitution arising out of the English Bill of Rights and 1689 Glorious Revolution, not on the theory of democracy or any ideas of nationhood.

It looks to me from the Judgment as if the Government may also have failed to argue a distinction between directly applicable EU rights that arise through the EU system and are directly applied as a result of the European Communities Act and have agreed that those rights are the same in essence as rights arising from either Common Law or Statute. Those are the rights which previous cases have upheld as being outside the power of the Royal prerogative to change.

That being the case it may well be that the Supreme Court next month will rule to uphold this Judgment. If that is the case then be in no doubt that the giving of notice under Article 50 will require primary legislation to go through Parliament. That is an Act to be passed by both the House of Commons and the House of Lords and to be given Royal Assent and to be implemented by an Order from the Privy Council.

Such legislation to become an Act of Parliament will be subject to all sorts of quibbles and delaying tactics by the Remainers who form a huge majority of Members of Parliament and Peers. It follows that we look like we are entering a major constitutional crisis at least equivalent to that of Lloyd George’s budget in 1911, which, combined with the Irish Question, got us perilously close to civil war with the then Leader of the Conservative Party involved in smuggling arms!

There is also the tempting question to Tories of whether the Conservatives can get electoral advantage by wrong-footing Labour into outright opposition to such a bill and then being able to get a two thirds majority in the House of Commons for a snap election under the Fixed Terms Parliament Act!

As a postscript would the Conservatives campaigning for a mandate to trigger the Article 50 notice be temptingly likely to achieve Theresa May’s aim of destroying UKIP?

It will also be interesting to see if Labour can actually survive as a Party outside of the metropolitan areas on a ticket of opposing Brexit when a vast majority of their voters in much of the rest of England voted to Leave in June’s EU Referendum!